“Dolphin-Safe” Tuna Label in Jeopardy

Oh dolphins. So smart and cute and playful, they’re like the labradoodle of the sea. Sure, some may consider them to be the honey badger of the sea with their ravenous and unquenchable thirst for murder, but they also provide so many college girls with the perfect tattoo image. Whichever way you feel about dolphins, you don’t want to eat them, and you don’t want to see the second most intelligent animal on Earth (just above humans and below mice) slaughtered just so you can enjoy that Niçoise salad or sashimi platter.

Because large yellowfin tuna in the eastern Pacific Ocean school with our mammalian cousins, the U.S. Department of Commerce has discouraged tuna fishing methods that can threaten dolphins through the proliferation of the now ubiquitous “Dolphin-Safe” label on your favorite cans of albacore, yellowfin and tongol. This label, introduced with the passage of the Dolphin Protection Consumer Information Act in 1990, has been greatly successful in helping dolphin populations rebound from their lowest points in the early 1990s that were attributed to harmful and irresponsible fishing practices. That label is currently under threat for being anti-competitive. In 2009, Mexico complained to the World Trade Organization, the controversial yet influential international body that establishes worldwide regulations and mediates arbitrations on treaties and trade disputes through member countries, that the American rules were discriminatory against Mexican producers that complied with international standards to limit the accidental capture of dolphins in commercial tuna nets. Last week the WTO ruled that, while the American regulations aren’t necessarily anti-competitive to Mexico, they are more restrictive than necessary with regards to their purpose of protecting dolphins.

The WTO is not ruling on American regulations regarding tuna fishing and the methods, specifically purse-seining, that have historically caused dolphins to be slaughtered in the pursuit of tuna. This ruling has to do with the labeling of “dolphin-safe” tuna that the three major producers of canned tuna – Starkist, Chicken of the Sea and Bumble Bee – use to create customer awareness and also use as sourcing guidance. None of these companies purchase Mexican tuna because Mexico still uses the controversial method of purse-seining, where nets are dropped under large schools of tuna, then raised up and cinched like a purse. (The Monterey Bay Aquarium Seafood Watch program identifies dolphin-safe tuna caught traditionally as a “good alternative,” with tuna that is troll or hook-and-line caught as a “best choice.”)

Mexican tuna is not banned in the US, nor is the import of any tuna that is caught with controversial methods. While the destructive fishing methods are banned in US waters, the ‘dolphin-safe” label is strictly voluntary. According to Todd Tucker, research director for Public Citizen’s Global Trade Watch, “Mexico can sell tuna in the U.S. market with or without the label. ‘Voluntary’ is the new ‘mandatory,’ according to this WTO ruling. It tells consumers that even voluntary labels, and the subjective consumer preferences they may cultivate, are ripe for WTO attack.”

Only US producers are restricted in their methods of capture. But in order to receive the consumer-friendly label, the producer can’t use the banned methods, and Mexico, the 12th largest tuna producer in the world according to the U.N. Food and Agriculture Organization, claims it cannot afford to abandon the purse-seining method of fishing, though it contends that it is still dolphin-safe to less restrictive international standards.

Image from NOAA

The US has the right to appeal and is considering that action presently, though not without threat. “The WTO ruling is a crushing blow to the label ‘dolphin-safe’ and opens the way for Mexican producers to enter the U.S. market without restrictions, as is their right,” Mexican Economy Secretary Bruno Ferrari said. “Should the U.S. appeal, the final result would be released late in the first quarter of 2012. If such an appeal is again unfavorable and the country chooses not to abide by an adverse ruling, Mexico would have the right, under the rules of the organization, to impose trade retaliation.” This type of action would not be without precedent; in 2008 Mexico suspended purchases of U.S. meat products from 30 American plants operating in 14 different states as a retaliatory measure against the newly implemented “country-of-origin” labeling law, which Canada is also challenging, calling it restrictive and costly. Based on recent history, the WTO will likely rule against US standards on “country-of-origin” labeling as well.

What does this all mean for consumers? It is doubtful this will win any support for WTO here in the states. In this, the third time the WTO and its predecessor the General Agreement on Tariffs and Trade have ruled against US dolphin-protection standards, they may have severely exceeded their authority.

Even in today’s anti-regulatory political climate, the trend has been toward greater transparency in labeling for our products. The American consumer wants to know as much as possible about what they buy and especially what they eat, so limiting the availability of information that was once common probably won’t go over very well. Lori Wallach, director of Public Citizen’s Global Trade Watch agrees, and thinks this could be one issue that all political beliefs could support. “Fury about a foreign tribunal ruling against a popular U.S. consumer labeling law on a common food product, which has been explicitly and repeatedly approved by our courts, is among the few things likely to unite Americans across the political spectrum,” Could she be right? Could a concern that the WTO is overreaching its authority provide an opportunity for bi-partisanship? Can Flipper be the one to finally bridge the Washington chasm?

Josh Gelfand is a staff writer living in San Francisco, though he was born and raised on the freeways of Los Angeles and spent many years in San Diego. He is a living model of what can be achieved when Californians bridge the north-south chasm and come together as one. He received his MBA in Sustainable Management from Presidio Graduate School and a BA in Journalism from the University of Wisconsin.